Wages and Hours: Frequently Asked Questions

On December 31, 2014, New York State's minimum wage increased to $8.75 per hour. New posters are available for printing. A summary listing of rates for all industries can be found on our forms page. If you have questions, please review our Frequently Asked Questions. If you need additional assistance or to file a complaint, please call: 1-888-4NYSDOL (469-7365).

New York State’s minimum wage will increase on December 31. Don’t be caught off-guard!

Minimum Wage Increase

Beginning December 31, 2013, New York State’s minimum wage will increase in a series of three annual changes as follows:

$8.00 on 12/31/13

$8.75 on 12/31/14

$9.00 on 12/31/15

Here, you can find updated posters, summary rate sheets and FAQs . Check back frequently for other updates as the increases take effect.
The Minimum Wage regulations showing proposed changes are posted on the Department of Labor’s website under Legal Updates:
Pay special attention to the “Part number” of the New York Codes, Rules and Regulations (“NYCRR”) to be sure you reference the correct document for the industry you seek: 12 NYCRR Part 141 (building service), Part 142 (miscellaneous industries), Part 143 (nonprofit) and Part 146 (hospitality).

NOTE: Underlined items show the proposed rate changes to allowances or credits which result from the increase in the State Minimum Wage rate. No changes are proposed for rules such as recordkeeping requirements.

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The minimum wage in New York State is $8.75 per hour. Everyone has a right to earn at least the minimum wage. In New York State, most workers should earn $8.75 an hour.
There are exceptions for youth, farmers and workers who earn tips. In most cases, a full-time job is up to 40 hours a week. There are exceptions for farmers and homecare workers. If you work more than 40 hours a week, you should get higher pay for the extra hours.
The minimum wage and overtime laws apply to ALL WORKERS, even if you are undocumented or paid:

Hourly, daily or weekly

In cash or by check

Off the books

People in the hospitality industry who earn at least $3.75 per hour in tips may receive a minimum wage rate of $5.00 per hour.
Different rates exist for other types of service employees. A set of regulations called a "Wage Order" specifies these rates. The Wage Order addresses the unique aspects of each industry or occupation.
The minimum wage for janitors in residential buildings is a per unit, rather than an hourly, rate. The current unit rate, for residential janitors earning less than $372.15 per week, is $5.85.
In a payroll week, a piece-rate worker must earn at least $8.75 for each hour worked.
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Q: Can employers require their employees to wear uniforms?

A:
Yes. However, the cost of buying and/or taking care of a uniform must not bring the employee below the minimum wage.

IF...

THEN

Workers at the minimum wage rate must wear a uniform

Their employers must clean and take care of the uniforms
OR
Pay the employees to do so

Ordinary clothing (such as black trousers and white shirts) is generally not a "uniform."
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Q: Do the minimum wage requirements cover everyone?

A:
Most people are covered by the minimum wage requirements. However, some people are not. Those who are not covered include:

Executives and administrators earning more than $600.00 per week

Professionals

Outside salespersons

Taxicab drivers

Government employees (However, certain non-teaching employees of BOCES are covered)

Part-time babysitters

Companions to the sick or elderly who live in their employer's home and whose principal duties do not include housework

Ministers and members of religious orders

Volunteers, learners, apprentices and students working in non-profit institutions

Students obtaining vocational experience

The Labor Law does not consider independent contractors - people who are in business for themselves - as "employees." This means that minimum wage requirements do not cover independent contractors.
These are the major exclusions. For a more complete listing, see the NYS Labor Law, Article 19, Section 651.
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Q: Where can I find the required posters that summarize the minimum wage rules?

A:
Article 19 of the Labor Law requires employers to post the provisions of the Minimum Wage Act. This poster is available at:

A:
The overtime requirement is based on hours worked in a given payroll week. Thus, time and one-half, double-time - or any amount higher than the agreed rate - is not required simply because the work is performed after eight hours per day or on a Saturday or Sunday.

Employees

Overtime Rate

Covered employees

One and one-half times their regular, "straight-time" hourly rate of pay

Non-residential employees

Applies to all time over 40 hours in a payroll week

Residential employees ("live-in" workers)

Applies to all time over 44 hours in a payroll week

Federal law excludes some types of employees from the requirement to receive one and one-half times their regular rate of pay. Many people call these "exempt" positions. The Fair Labor Standards Act (FLSA), listed by the U.S. Department of Labor, Wage and Hour Division, outlines occupations excluded by federal law. You can find the act at:

http://www.dol.gov/elaws/esa/flsa/screen75.asp
New York State follows these exclusions. However, the State still requires that they receive at least one and one-half times the minimum rate of $8.75 for their overtime hours in businesses covered by the Miscellaneous Wage Order.
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Q: Where can I find details about the state laws for employing minors?

For meal period requirements, go to:
http://www.labor.ny.gov/formsdocs/wp/LS443.pdf
Meal periods do not count as work time, thus employers need not pay for that time.
Employers do not have to provide other "breaks", such as for "rest periods" or "coffee breaks." But, if an employer permits a break (of up to 20 minutes), then they should pay it as work time.
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Q: Must an employer pay workers for holidays, sick time and/or vacations?

A:
Under the New York State Labor Law, payment for time not actually worked is not required unless the employer has established a policy to grant such pay. Holidays, sick time and/or vacations fall under 'time not worked.' When an employer does decide to create a benefit policy, that employer is free to impose any conditions they choose.

Q: What is the status of an employer's oral agreement to provide a particular fringe benefit?

A:
Section 195.5 of the Labor Law states: Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours.

If an employer does not have a written policy, the oral policy (or past practice) may be enforced - if the terms of the policy can be confirmed through an investigation. Moreover, violators of § 195.5 are subject to civil penalty.
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Q: When employees resign -- or are discharged -- from a job, must the employer pay them for any accrued, unused vacation time?

A:
Whether an employer must pay for unused time depends upon the terms of the vacation and/or resignation policy. New York courts have held that an agreement to give benefits or wage supplements, like vacation, can specify that employees lose accrued benefits under certain conditions. [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).] To be valid, the employer must have told employees, in writing, of the conditions that nullify the benefit.

Q: Does the law require that an employer "give notice" of termination?

A:
The New York State Worker Adjustment and Retraining Notification (WARN) Act became a law on August 5, 2008, with the approval of the Governor (passed by a majority vote, three-fifths being present). Under the provisions of the act:

Private sector employers with 50 or more workers (excluding part-time employees as defined under the regulations).

Employers must provide at least 90 days notice before closing a plant. A plant closing refers to the shutdown of a single site of employment that results in an employment loss of 25 or more full-time employees during any 30-day period. They must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

For a mass layoff that does not result from a plant closing.

Employers also must provide at least 90 days notice when there is a layoff (excluding part-time employees as defined under the regulations) that affects 33 percent of the workforce (at least 25 workers) or 250 workers from a single employment site. They must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

A:
Yes. New York State is an "employment-at-will," state. If there is no contract to restrict firing (like a collective bargaining agreement) an employer has the right to discharge an employee at any time for any reason. This also protects the employee's right to resign. An employer may fire an employee for "no reason." An employer may also fire an employee for a reason that might seem arbitrary and unfair. The employee is equally free to quit at any time without needing to explain or defend that decision.

There are a few exceptions to "employment-at-will." The most significant of these are laws, enforced by the New York State Division of Human Rights, which prohibit discrimination based on:

Race

Creed

National origin

Age

Disability

Gender

Sexual orientation

Marital status

For more information about how the New York State Division of Human Rights proceeds against unlawful forms of discrimination, go to their website.
Other exceptions to the doctrine of "employment-at-will" exist under § 201-d and § 215 of the New York State Labor Law:

Section 201-d prohibits an employer from firing an employee for:

- political or recreational activities outside of work

- legal use of consumable products outside of work

- for membership in a union

Section 215 states that no employer shall penalize any employee for making a complaint to the employer, to the Commissioner of Labor, or to the Commissioner's representative, about any provision of the Labor Law (Violation of § 215 can bring a civil fine and separate civil action by the employee.)

Q: How can employees get help to collect wages their employer owes them?

A:
The Division of Labor Standards investigates claims for unpaid or withheld wages including illegal deductions, and tries to collect these wages. Labor Standards also enforces the prohibition against illegal kickback of wages and tip appropriation.

* 1. No employer shall make any deduction from the wages of an employee, except deductions which:a. are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency including regulations promulgated under paragraph c and paragraph d of this subdivision; or b. are expressly authorized in writing by the employee and are for the benefit of the employee, provided that such authorization is voluntary and only given following receipt by the employee of written notice of all terms and conditions of the payment and/or its benefits and the details of the manner in which deductions will be made. Whenever there is a substantial change in the terms or conditions of the payment, including but not limited to, any change in the amount of the deduction, or a substantial change in the benefits of the deduction or the details in the manner in which deductions shall be made, the employer shall, as soon as practicable, but in each case before any increased deduction is made on the employee's behalf, notify the employee prior to the implementation of the change. Such authorization shall be kept on file on the employer's premises for the period during which the employee is employed by the employer and for six years after such employment ends.Notwithstanding the foregoing, employee authorization for deductions under this section may also be provided to the employer pursuant to the terms of a collective bargaining agreement. Such authorized deductions shall be limited to payments for:(i) insurance premiums and prepaid legal plans;(ii) pension or health and welfare benefits;(iii) contributions to a bona fide charitable organization;(iv) purchases made at events sponsored by a bona fide charitable organization affiliated with the employer where at least twenty percent of the profits from such event are being contributed to a bona fide charitable organization;(v) United States bonds;(vi) dues or assessments to a labor organization;(vii) discounted parking or discounted passes, tokens, fare cards, vouchers, or other items that entitle the employee to use mass transit;(viii) fitness center, health club, and/or gym membership dues;(ix) cafeteria and vending machine purchases made at the employer's place of business and purchases made at gift shops operated by the employer, where the employer is a hospital, college, or university;(x) pharmacy purchases made at the employer's place of business;(xi) tuition, room, board, and fees for pre-school, nursery, primary, secondary, and/or post-secondary educational institutions;(xii) day care, before-school and after-school care expenses;(xiii) payments for housing provided at no more than market rates by non-profit hospitals or affiliates thereof; and(xiv) similar payments for the benefit of the employee.c. are related to recovery of an overpayment of wages where such overpayment is due to a mathematical or other clerical error by the employer. In making such recoveries, the employer shall comply with regulations promulgated by the commissioner for this purpose, which regulations shall include, but not be limited to, provisions governing: the size of overpayments that may be covered by this section; the timing, frequency, duration, and method of such recovery; limitations on the periodic amount of such recovery; a requirement that notice be provided to the employee prior to the commencement of such recovery; a requirement that the employer implement a procedure for disputing the amount of such overpayment or seeking to delay commencement of such recovery; the terms and content of such a procedure and a requirement that notice of the procedure for disputing the overpayment or seeking to delay commencement of such recovery be provided to the employee prior to the commencement of such recovery.d. repayment of advances of salary or wages made by the employer to the employee. Deductions to cover such repayments shall be made in accordance with regulations promulgated by the commissioner for this purpose, which regulations shall include, but not be limited to, provisions governing: the timing, frequency, duration, and method of such repayment; limitations on the periodic amount of such repayment; a requirement that notice be provided to the employee prior to the commencement of such repayment; a requirement that the employer implement a procedure for disputing the amount of such repayment or seeking to delay commencement of such repayment; the terms and content of such a procedure and a requirement that notice of the procedure for disputing he repayment or seeking to delay commencement of such repayment be provided to the employee at the time the loan is made.
* NB Effective until November 6, 2015
* 1. No employer shall make any deduction from the wages of an employee, except deductions which:a. are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; orb. are expressly authorized in writing by the employee and are for the benefit of the employee; provided that such authorization is kept on file on the employer's premises. Such authorized deductions shall be limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee.
* NB Effective November 6, 2015
* 2. Deductions made in conjunction with an employer sponsored pre-tax contribution plan approved by the IRS or other local taxing authority, including those falling within one or more of the categories set forth in paragraph b of subdivision one of this section, shall be considered to have been made in accordance with paragraph a of subdivision one of
this section.
* NB Effective until November 6, 2015
* 2. No employer shall make any charge against wages, or require an employee to make any payment by separate transaction unless such charge or payment is permitted as a deduction from wages under the provisions of subdivision one of this section.
* NB Effective November 6, 2015
* 3. a. No employer shall make any charge against wages, or require an employee to make any payment by separate transaction unless such charge or payment is permitted as a deduction from wages under the provisions of subdivision one of this section or is permitted or required under any provision of a current collective bargaining agreement.b. Notwithstanding the existence of employee authorization to make deductions in accordance with subparagraphs (iv), (ix), and (x) of paragraph b of subdivision one of this section and deductions determined
by the commissioner to be similar to such deductions in accordance with subparagraph (xiv) of paragraph b of subdivision one of this section, the total aggregate amount of such deductions for each pay period shall be subject to the following limitations: (i) such aggregate amount shall not exceed a maximum aggregate limit established by the employer for each pay period; (ii) such aggregate amount shall not exceed a maximum aggregate limit established by the employee, which limit may be for any amount (in ten dollar increments) up to the maximum amount established
by the employer under subparagraph (i) of this paragraph; (iii) the employer shall not permit any purchases within these categories of deduction by the employee that exceed the aggregate limit established by the employee or, if no limit has been set by the employee, the limit set by theemployer;(iv)theemployeeshallhaveaccesswithinthe workplacetocurrentaccountinformationdetailingindividual expenditures within these categories of deduction and a running total of the amount that will be deducted from the employee's pay during the next applicable pay period. Information shall be available in printed form or capable of being printed should the employee wish to obtain a listing.Noemployeemay be charged any fee, directly or indirectly, for access to, or printing of, such account information.c. With the exception of wage deductions required or authorizedin a currentexistingcollectivebargainingagreement,anemployee's authorization for any and all wage deductions may be revoked inwriting atanytime.The employer must cease the wage deduction for which the employee has revoked authorization as soon as practicable,and,inno eventmore than four pay periods or eight weeks after the authorization has been withdrawn, whichever is sooner.* NB Effective until November 6, 2015* 3. Nothing in this section shall justify noncompliance witharticle three-A of the personal property law relating to assignment of earnings, nor with any other law applicable to deductions from wages.* NB Effective November 6, 2015* 4.Nothing in this section shall justify noncompliance with article three-A of the personal property law relating to assignment of earnings, with section two hundred twenty-one of this chapter relating tocompany stores or with any other law applicable to deductions from wages.* NB Effective until November 6, 2015
You may print this section of law here.
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Q: What information must an employer's payroll records contain?

A:
Employers must keep payroll records showing, for each week worked by an employee:

the total hours worked each day;

the total hours worked each week;

the rate or rates of pay and basis (by the hour, shift, day, week, salary, piece, commission or other);

if paid more than one hourly rate, the number of hours worked at each rate;

if paid piece rates, the number of pieces completed at each piece rate;

gross wages

deductions

allowances or credits, if any, claimed as part of the minimum wage; and

net wages.

If the employee worked overtime and is required to be paid at a higher rate for overtime hours, the payroll records must also include the four items listed below, along with the items listed above:

New York State Labor Law requires all employers to display a Minimum Wage Poster. However, employers in certain, specific industries have more posting responsibilities.
As shown on the above website, employers "engaged in the sale or service of food or beverages" must post:

A reprint of § 193, entitled, "Deductions From Wages"

A reprint of § 196-d, entitled "Gratuities"

Other employers with specific posting requirements include:

Agricultural and garment industry employers

Employers involved in Industrial Homework

Employment Agencies

Employers who hire minors must post a schedule setting forth "the hours of beginning and stopping and the time allowed for meals" of each minor in their employ.
To obtain federal posting requirements, contact the U.S. Department of Labor at their website: